501 U.S. 190

111 S.Ct. 2215

115 L.Ed.2d 177

LITTON FINANCIAL PRINTING DIVISION, A DIVISIONOF LITTON BUSINESS SYSTEMS, INC., Petitioner,

v.NATIONAL LABOR RELATIONS BOARD et al.

No. 90-285.

Argued March 20, 1991.Decided June 13, 1991.

Syllabus

Among other things, the collective-bargaining agreement (Agreement)between petitioner Litton and the Union representing the productionemployees at Litton's printing plant broadly required that all differences asto contract construction or violations be determined by arbitration,specified that grievances that could not be resolved under a two-stepgrievance procedure should be submitted for binding arbitration, andprovided that, in case of layoffs, length of continuous service would be thedetermining factor "if other things such as aptitude and ability [were]equal." The Agreement expired in October 1979. A new agreement hadnot been negotiated when, in August and September 1980 and without anynotice to the Union, Litton laid off 10 of the workers at its plant, including6 of the most senior employees, pursuant to its decision to close down itscold-type printing operation. The Union filed grievances on behalf of thelaidoff employees, claiming a violation of the Agreement, but Littonrefused to submit to the contractual grievance and arbitration procedure, tonegotiate over its layoff decision, or to arbitrate under any circumstances.Based on its precedents dealing with unilateral postexpirationabandonment of contractual grievance procedures and postexpirationarbitrability, the National Labor Relations Board (Board) held that Litton'sactions violated § 8(a)(1) and (5) of the National Labor Relations Act(NLRA). However, although it ordered Litton, inter alia, to process thegrievances through the two-step grievance procedure and to bargain withthe Union over the layoffs, the Board refused to order arbitration of theparticular layoff disputes, ruling that they did not "arise under" the expired

contract as required by its decision in Indiana & Michigan Electric Co.,284 N.L.R.B. 53, and its interpretation of this Court's decision in NoldeBros., Inc. v. Bakery Workers, 430 U.S. 243, 97 S.Ct. 1067, 51 L.Ed.2d300. The Court of Appeals enforced the Board's order, with the exceptionof that portion holding the layoff grievance not arbitrable, ruling that theright to lay off in seniority order, if other things such as aptitude andability were equal, did arise under the Agreement.

Held: The layoff dispute was not arbitrable. Pp. 198-210.

(a) The unilateral change doctrine of NLRB v. Katz, 369 U.S. 736, 82 S.Ct.1107, 8 L.Ed.2d 230 whereby an employer violates the NLRA if, withoutbargaining to impasse, it effects a unilateral change of an existing term orcondition of employment—extends to cases in which an existingagreement has expired and negotiations on a new one have yet to becompleted. See, e.g., Laborers Health and Welfare Trust Fund v.Advanced Lightweight Concrete Co., 484 U.S. 539, 544, n. 6, 108 S.Ct.830, 833, n. 6, 98 L.Ed.2d 936. However, since Hilton-Davis ChemicalCo., 185 N.L.R.B. 241, the Board has held that an arbitration clause doesnot, by operation of the NLRA as interpreted in Katz, continue in effectafter expiration of a collective-bargaining agreement. Pp. 198-200.

(b) This Court will not extend the unilateral change doctrine to impose astatutory duty to arbitrate postexpiration disputes. The Board's Hilton-Davis Chemical Co. rule is both rational and consistent with the NLRA,under which arbitration is a matter of consent and will not be imposedbeyond the scope of the parties' agreement. See, e.g., Gateway Coal Co. v.Mine Workers, 414 U.S. 368, 374, 94 S.Ct. 629, 635, 38 L.Ed.2d 583. TheBoard's rule is therefore entitled to deference. If parties who favor laborarbitration during a contract's term also desire it to resolve postexpirationdisputes, they can draft their agreement to so indicate, to eliminate anyhiatus between expiration of the old and execution of the new agreement,or to remain in effect until they bargain to impasse. Pp. 200-201.

(c) The Board's decision not to order arbitration of the layoff grievances inthis case is not entitled to substantial deference. Although the Board hasconsiderable authority to structure its remedial orders to effectuate theNLRA's purposes and to order the relief it deems appropriate, its decisionhere is not based on statutory considerations, but rests upon itsinterpretation of the Agreement, applying Nolde Bros. and the federalcommon law of collective bargaining. Arbitrators and courts, rather thanthe Board, are the principal sources of contract interpretation under § 301of the Labor Management Relations Act. Deferring to the Board in its

interpretation of contracts would risk the development of conflictingprinciples. Pp. 201-203.

(d) Nevertheless, as Nolde Bros. recognized, a postexpiration duty toarbitrate a dispute may arise from the express or implied terms of theexpired agreement itself. Holding that the extensive obligation to arbitrateunder the contract there at issue was not consistent with an interpretationthat would eliminate all duty to arbitrate upon expiration, Nolde Bros.,supra, 430 U.S., at 255, 97 S.Ct., at 1074, found a presumption in favor ofpostexpiration arbitration of disputes unless negated expressly or by clearimplication, so long as such disputes arose out of the relation governed bycontract. Pp. 203-204.

(e) The Agreement's unlimited arbitration clause places it within theprecise rational of Nolde Bros., such that other Agreement provisionscannot rebut the Nolde Bros. presumption. P. 205.

(f) However, Nolde Bros. does not announce a broad rule that post-expiration grievances concerning terms and conditions of employmentremain arbitrable, but applies only where a dispute has its real source inthe contract. Absent an explicit agreement that certain benefits continuepast expiration, a postexpiration grievance can be said to arise under thecontract only where it involves facts and occurrences that arise beforeexpiration, where a postexpiration action infringes a right that accrued orvested under the agreement, or where, under the normal principles ofcontract interpretation, the disputed contractual right survives expirationof the remainder of the agreement. And, as Nolde Bros. found, structuralprovisions relating to remedies and dispute resolution—e.g., an arbitrationprovision—may in some cases survive in order to enforce duties under thecontract. It is presumed as a matter of contract interpretation that theparties did not intend a pivotal dispute resolution provision to terminatefor all purposes upon the Agreement's expiration. Pp. 205-208.

(g) Application of the foregoing principles reveals that the layoff disputeat issue does not arise under the Agreement. Since the layoffs took placealmost one year after the Agreement expired, the grievances are arbitrableonly if they involve rights which accrued or vested under the Agreementor carried over after its expiration. The layoff provision here does notsatisfy these requirements and, unlike the severance pay provision at issuein Nolde Bros., cannot be construed as a grant of deferred compensationfor time already worked. The order of layoffs under the Agreement was tobe determined primarily with reference to "other [factors] such as aptitudeand ability," which do not remain constant, but either improve or atrophy

over time, and which vary in importance with the requirements of theemployer's business at any given moment. Thus, any arbitrationproceeding would of necessity focus upon whether such factors wereequal as of the date of the layoff decision and the decision to close downthe cold-type operation, and an intent to freeze any particular order oflayoff or vest any contractual right as of the Agreement's expirationcannot be inferred. Pp. 208-210.

893 F.2d 1128 (CA9), reversed in part and remanded.

KENNEDY, J., delivered the opinion of the Court, in whichREHNQUIST, C.J., and WHITE, O'CONNOR, and SOUTER, JJ., joined.MARSHALL, J., filed a dissenting opinion, in which BLACKMUN andSCALIA, JJ., joined. STEVENS, J., filed a dissenting opinion, in whichBLACKMUN and SCALIA, JJ., joined.

Mathias J. Diederich, Torrance, Cal., for petitioner.

Lawrence G. Wallace, Washington, D.C., for respondent N.L.R.B. insupport of petitioner.

David A. Rosenfeld, San Francisco, Cal., for respondent PrintingSpecialties.

Justice KENNEDY delivered the opinion of the Court.

1 This case requires us to determine whether a dispute over layoffs whichoccurred well after expiration of a collective-bargaining agreement must be saidto arise under the agreement despite its expiration. The question arises in thecontext of charges brought by the National Labor Relations Board (Board)alleging an unfair labor practice in violation of §§ 8(a)(1) and (5) of theNational Labor Relations Act (NLRA), 49 Stat. 449, as amended, 29 U.S.C. §§158(a)(1) and (5). We interpret our earlier decision in Nolde Bros., Inc. v.Bakery Workers. 430 U.S. 243, 97 S.Ct. 1067, 51 L.Ed.2d 300 (1977).

2 * Petitioner Litton operated a check printing plant in Santa Clara, California.The plant utilized both cold-type and hot-type printing processes. PrintingSpecialties & Paper Products Union No. 777, Affiliated With District CouncilNo. 1 (Union), represented the production employees at the plant. The Unionand Litton entered into a collective-bargaining agreement which, withextensions, remained in effect until October 3, 1979. Section 19 of theAgreement is a broad arbitration provision: "Differences that may arise

between the parties hereto regarding this Agreement and any alleged violationsof the Agreement, the construction to be placed on any clause or clauses of theAgreement shall be determined by arbitration in the manner hereinafter setforth." App. 34.

3 Section 21 of the Agreement sets forth a two-step grievance procedure, at theconclusion of which, if a grievance cannot be resolved, the matter may besubmitted for binding arbitration. Id., at 35.

4 Soon before the Agreement was to expire, an employee sought decertificationof the Union. The Board conducted an election on August 17, 1979, in whichthe Union prevailed by a vote of 28 to 27. On July 2, 1980, after muchpostelection legal maneuvering, the Board issued a decision to certify theUnion. No contract negotiations occurred during this period of uncertainty overthe Union's status.

5 Litton decided to test the Board's certification decision by refusing to bargainwith the Union. The Board rejected Litton's position and found its refusal tobargain an unfair labor practice. Litton Financial Printing Division, 256N.L.R.B. 516 (1981). Meanwhile, Litton had decided to eliminate its cold-typeoperation at the plant, and in late August and early September of 1980, laid off10 of the 42 persons working in the plant at that time. The laid off employeesworked either primarily or exclusively with the cold-type operation, andincluded six of the eleven most senior employees in the plant. The layoffsoccurred without any notice to the Union.

6 The Union filed identical grievances on behalf of each laid off employee,claiming a violation of the Agreement, which had provided that "in case oflayoffs, lengths of continuous service will be the determining factor if otherthings such as aptitude and ability are equal." App. 30. Litton refused to submitto the grievance and arbitration procedure or to negotiate over the decision tolay off the employees, and took a position later interpreted by the Board as arefusal to arbitrate under any and all circumstances. It offered instead tonegotiate concerning the effects of the layoffs.

7 On November 24, 1980, the General Counsel for the Board issued a complaintalleging that Litton's refusal to process the grievances amounted to an unfairlabor practice within the meaning of §§ 8(a)(1) and (5) of the NLRA, 29 U.S.C.§§ 158(a)(1) and (5). App. 15. On September 4, 1981, an Administrative LawJudge found that Litton had violated the NLRA by failing to process thegrievances. App. 114-115. Relying upon the Board's decision in American Sink

Top & Cabinet Co., 242 N.L.R.B. 408 (1979), the Administrative Law Judgewent on to state that if the grievances remained unresolved at the conclusion ofthe grievance process, Litton could not refuse to submit them to arbitration.App. 115-118. The Administrative Law Judge held also that Litton violated §§8(a)(1) and (5) when it bypassed the Union and paid severance wages directlyto the 10 laid off employees, and Litton did not contest that determination infurther proceedings.

8 Over six years later, the Board affirmed in part and reversed in part the decisionof the Administrative Law Judge. 286 N.L.R.B. 817 (1987). The Board foundthat Litton had a duty to bargain over the layoffs, and violated § 8(a) by failureto do so. Based upon well-recognized Board precedent that the unilateralabandonment of a contractual grievance procedure upon expiration of thecontract violates §§ 8(a)(1) and (5), the Board held that Litton had improperlyrefused to process the layoff grievances. See Bethlehem Steel Co., 136 N.L.R.B.1500, 1503 (1962), enforced in pertinent part, 320 F.2d 615 (CA3 1963). TheBoard proceeded to apply its recent decision in Indiana & Michigan ElectricCo., 284 N.L.R.B. 53 (1987), which contains the Board's current understandingof the principles of postexpiration arbitrability and of our opinion in NoldeBros., Inc. v. Bakery Workers, 430 U.S. 243, 97 S.Ct. 1067, 51 L.Ed.2d 300(1977). The Board held that Litton's "wholesale repudiation" of its obligation toarbitrate any contractual grievance after the expiration of the Agreement alsoviolated §§ 8(a)(1) and (5), as the Agreement's broad arbitration clause lacked

9 "language sufficient to overcome the presumption that the obligation toarbitrate imposed by the contract extended to disputes arising under the contractand occurring after the contract had expired. Thus, [Litton] remained 'subject toa potentially viable contractual commitment to arbitrate even after the[Agreement] expired.' " 286 N.L.R.B., at 818 (citation omitted).

10 Litton did not seek review of, and we do not address here, the Board'sdetermination that Litton committed an unfair labor practice by its unilateralabandonment of the grievance process and wholesale repudiation of anypostexpiration obligation to arbitrate disputes.

11 In fashioning a remedy, the Board went on to consider the arbitrability of theseparticular layoff grievances. Following Indiana & Michigan, the Boarddeclared its determination to order arbitration "only when the grievances atissue 'arise under' the expired contract." 286 N.L.R.B., at 821 (citing NoldeBros., supra ). In finding that the dispute about layoffs was outside thiscategory, the Board reasoned as follows:

II

A.

12 "The conduct that triggered the grievances . . . occurred after the contract hadexpired. The right to layoff by seniority if other factors such as ability andexperience are equal is not 'a right worked for or accumulated over time.'Indiana & Michigan, supra at 61. And, as in Indiana & Michigan Electric,there is no indication here that 'the parties contemplated that such rights couldripen or remain enforceable even after the contract expired.' Id. (citationomitted). Therefore, [Litton] had no contractual obligation to arbitrate thegrievances." 286 N.L.R.B., at 821-822.

13 Although the Board refused to order arbitration, it did order Litton to processthe grievances through the two-step grievance procedure, to bargain with theUnion over the layoffs, and to provide a limited backpay remedy.

14 The Board sought enforcement of its order, and both the Union and Littonpetitioned for review. The Court of Appeals enforced the Board's order, withthe exception of that portion holding the layoff grievances not arbitrable. 893F.2d 1128 (CA9 1990). On that question, the Court of Appeals was willing to"assume without deciding that the Board's Indiana & Michigan decision is areasonably defensible construction of the section 8(a)(5) duty to bargain." Id., at1137. The court decided, nevertheless, that the Board had erred, because theright in question, the right to layoff in order of seniority if other things such asaptitude and ability are equal, did arise under the Agreement. The Court ofAppeals thought the Board's contrary conclusion was in conflict with two laterBoard decisions, where the Board had recognized that seniority rights may ariseunder an expired contract, United Chrome Products, Inc., 288 N.L.R.B. 1176(1988), and Uppco, Inc., 288 N.L.R.B. 937 (1988).

15 The court cited a second conflict, one between Indiana & Michigan and thecourt's own interpretation of Nolde Bros. in Local Joint Executive Bd. of LasVegas Culinary Workers Union, Local 226 v. Royal Center, Inc., 796 F.2d 1159(CA9 1986). In Royal Center, the Court of Appeals had rejected the argumentthat only rights accruing or vesting under a contract prior to termination arecovered by the posttermination duty to arbitrate. Id., at 1163.

16 Litton petitioned for a writ of certiorari. Because of substantial disagreement asto the proper application of our decision in Nolde Bros.,1 we granted reviewlimited to the question of arbitrability of the layoff grievances. --- U.S. ----, 111S.Ct. 426, 112 L.Ed.2d 410.

17 Sections 8(a)(5) and 8(d) of the NLRA, 29 U.S.C. §§ 158(a)(5) and (d), requirean employer to bargain "in good faith with respect to wages, hours, and otherterms and conditions of employment." The Board has taken the position that itis difficult to bargain if, during negotiations, an employer is free to alter thevery terms and conditions that are the subject of those negotiations. The Boardhas determined, with our acceptance, that an employer commits an unfair laborpractice if, without bargaining to impasse, it effects a unilateral change of anexisting term or condition of employment. See NLRB v. Katz, 369 U.S. 736, 82S.Ct. 1107, 8 L.Ed.2d 230 (1962). In Katz the union was newly certified andthe parties had yet to reach an initial agreement. The Katz doctrine has beenextended as well to cases where, as here, an existing agreement has expired andnegotiations on a new one have yet to be completed. See, e.g., Laborers Healthand Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484 U.S. 539,544, n. 6, 108 S.Ct. 830, 833, n. 6, 98 L.Ed.2d 936 (1988).

18 Numerous terms and conditions of employment have been held to be thesubject of mandatory bargaining under the NLRA. See generally 1 C. Morris,The Developing Labor Law 772-844 (2d ed. 1983). Litton does not questionthat arrangements for arbitration of disputes are a term or condition ofemployment and a mandatory subject of bargaining. See id., at 813 (citingcases); United States Gypsum Co., 94 N.L.R.B. 112, 131 (1951).

19 The Board has ruled that most mandatory subjects of bargaining are within theKatz prohibition on unilateral changes. The Board has identified some termsand conditions of employment, however, which do not survive expiration of anagreement for purposes of this statutory policy. For instance, it is the Board'sview that union security and dues check-off provisions are excluded from theunilateral change doctrine because of statutory provisions which permit theseobligations only when specified by the express terms of a collective-bargainingagreement. See 29 U.S.C. § 158(a)(3) (union security conditioned uponagreement of the parties); 29 U.S.C. § 186(c)(4) (dues check-off valid onlyuntil termination date of agreement); Indiana & Michigan, 284 N.L.R.B., at 55(quoting Bethlehem Steel, 136 N.L.R.B., at 1502). Also, in recognition of thestatutory right to strike, no-strike clauses are excluded from the unilateralchange doctrine, except to the extent other dispute resolution methods surviveexpiration of the agreement. See 29 U.S.C. §§ 158(d)(4), 163 (union's statutoryright to strike); Southwestern Steel & Supply, Inc. v. NLRB, 257 U.S.App.D.C.19, 23, 806 F.2d 1111, 1114 (1986).

20 In Hilton-Davis Chemical Co., 185 N.L.R.B. 241 (1970), the Board determinedthat arbitration clauses are excluded from the prohibition on unilateral changes,reasoning that the commitment to arbitrate is a "voluntary surrender of the right

B

of final decision which Congress . . . reserved to [the] parties. . . . [A]rbitrationis, at bottom, a consensual surrender of the economic power which the partiesare otherwise free to utilize." Id., at 242. The Board further relied upon ourstatements acknowledging the basic federal labor policy that "arbitration is amatter of contract and a party cannot be required to submit to arbitration anydispute which he has not agreed so to submit." United Steelworkers of Americav. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4L.Ed.2d 1409 (1960). See also 29 U.S.C. § 173(d) (phrased in terms of parties'agreed upon method of dispute resolution under an existing bargainingagreement). Since Hilton-Davis the Board has adhered to the view that anarbitration clause does not, by operation of the NLRA as interpreted in Katz,continue in effect after expiration of a collective-bargaining agreement.

21 The Union argues that we should reject the Board's decision in Hilton-DavisChemical Co., and instead hold that arbitration provisions are within Katz'prohibition on unilateral changes. The unilateral change doctrine, and theexclusion of arbitration from the scope of that doctrine, represent the Board'sinterpretation of the NLRA requirement that parties bargain in good faith. And"[i]f the Board adopts a rule that is rational and consistent with the Act . . . thenthe rule is entitled to deference from the courts." Fall River Dyeing & FinishingCorp. v. NLRB, 482 U.S. 27, 42, 107 S.Ct. 2225, 2235, 96 L.Ed.2d 22 (1987);see, e.g., NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. ----, ----, 110 S.Ct.1542, ----, 108 L.Ed.2d 801 (1990).

22 We think the Board's decision in Hilton-Davis Chemical Co. is both rationaland consistent with the Act. The rule is grounded in the strong statutoryprinciple, found in both the language of the NLRA and its drafting history, ofconsensual rather than compulsory arbitration. See Indiana & Michigan, supra,at 57-58; Hilton-Davis Chemical Co., supra. The rule conforms with ourstatement that "[n]o obligation to arbitrate a labor dispute arises solely byoperation of law. The law compels a party to submit his grievance to arbitrationonly if he has contracted to do so." Gateway Coal Co. v. Mine Workers, 414U.S. 368, 374, 94 S.Ct. 629, 635, 38 L.Ed.2d 583 (1974). We reaffirm todaythat under the NLRA arbitration is a matter of consent, and that it will not beimposed upon parties beyond the scope of their agreement.

23 In the absence of a binding method for resolution of postexpiration disputes, aparty may be relegated to filing unfair labor practice charges with the Board ifit believes that its counterpart has implemented a unilateral change in violationof the NLRA. If, as the Union urges, parties who favor labor arbitration during

III

the term of a contract also desire it to resolve postexpiration disputes, theparties can consent to that arrangement by explicit agreement. Further, acollective-bargaining agreement might be drafted so as to eliminate any hiatusbetween expiration of the old and execution of the new agreement, or to remainin effect until the parties bargain to impasse.2 Unlike the Union's suggestionthat we impose arbitration of postexpiration disputes upon parties once theyagree to arbitrate disputes arising under a contract, these alternatives wouldreinforce the statutory policy that arbitration is not compulsory.

24 The Board argues that it is entitled to substantial deference here because it hasdetermined the remedy for an unfair labor practice. As noted above, we willuphold the Board's interpretation of the NLRA so long as it is "rational andconsistent with the Act." Fall River Dyeing & Finishing Corp. v. NLRB, supra,482 U.S., at 42, 107 S.Ct., at 2235. And we give the greatest latitude to theBoard when its decision reflects its " 'difficult and delicate responsibility' ofreconciling conflicting interests of labor and management," NLRB v. J.Weingarten, Inc., 420 U.S. 251, 267, 95 S.Ct. 959, 968, 43 L.Ed.2d 171 (1975).We have accorded the Board considerable authority to structure its remedialorders to effect the purposes of the NLRA and to order the relief it deemsappropriate. See Shepard v. NLRB, 459 U.S. 344, 352, 103 S.Ct. 665, 670-71,74 L.Ed.2d 523 (1983); Virginia Elec. & Power Co. v. NLRB, 319 U.S. 533,540, 63 S.Ct. 1214, 1218-19, 87 L.Ed. 1568 (1943).

25 The portion of the Board's decision which we review today does discuss theappropriate remedy for a violation of the NLRA. But it does not follow that wemust accord the same deference we recognized in Virginia Elec. & Power Co.and Shepard. Here, the Board's remedial discussion is not grounded in terms ofany need to arbitrate these grievances in order "to effectuate the policies of theAct." Virginia Elec. & Power Co., supra, at 540, 63 S.Ct., at 1218. Rather, theBoard's decision not to order arbitration of the layoff grievances rests upon itsinterpretation of the Agreement, applying our decision in Nolde Bros. and thefederal common law of collective-bargaining agreements. The Board nowdefends its decision on the ground that it need not "reflexively order that whicha complaining party may regard as 'complete relief' for every unfair laborpractice," Shepard v. NLRB, supra, 459 U.S., at 352, 103 S.Ct., at 670-71; butits decision did not purport to rest upon such grounds.

26 Although the Board has occasion to interpret collective-bargaining agreementsin the context of unfair labor practice adjudication, see NLRB v. C & CPlywood Corp., 385 U.S. 421, 87 S.Ct. 559, 17 L.Ed.2d 486 (1967), the Board

IV

is neither the sole nor the primary source of authority in such matters."Arbitrators and courts are still the principal sources of contract interpretation."NLRB v. Strong, 393 U.S. 357, 360-361, 89 S.Ct. 541, 544, 21 L.Ed.2d 546(1969). Section 301 of the Labor Management Relations Act (LMRA), 29U.S.C. § 185, "authorizes federal courts to fashion a body of federal law for theenforcement of . . . collective bargaining agreements." Textile Workers v.Lincoln Mills of Alabama, 353 U.S. 448, 451, 77 S.Ct. 912, 915, 1 L.Ed.2d 972(1957) (emphasis added). We would risk the development of conflictingprinciples were we to defer to the Board in its interpretation of the contract, asdistinct from its devising a remedy for the unfair labor practice that followsfrom a breach of contract. We cannot accord deference in contract interpretationhere only to revert to our independent interpretation of collective-bargainingagreements in a case arising under § 301. See Local Union 1395, Int'lBrotherhood of Electrical Workers v. NLRB, 254 U.S.App.D.C. 360, 363-364,797 F.2d 1027, 1030-1031 (1986).

27 The duty not to effect unilateral changes in most terms and conditions ofemployment, derived from the statutory command to bargain in good faith, isnot the sole source of possible constraints upon the employer after theexpiration date of a collective-bargaining agreement. A similar duty may ariseas well from the express or implied terms of the expired agreement itself. This,not the provisions of the NLRA, was the source of the obligation whichcontrolled our decision in Nolde Bros., Inc. v. Bakery Workers, 430 U.S. 243,97 S.Ct. 1067, 51 L.Ed.2d 300 (1977). We now discuss that precedent in thecontext of the case before us.

28 In Nolde Bros., a union brought suit under § 301 of the Labor ManagementRelations Act, 29 U.S.C. § 185, to compel arbitration. Four days aftertermination of a collective-bargaining agreement, the employer decided tocease operations. The employer settled employee wage claims, but refused topay severance wages called for in the agreement, and declined to arbitrate theresulting dispute. The union argued that these wages

29 "were in the nature of 'accrued' or 'vested' rights, earned by employees duringthe term of the contract on essentially the same basis as vacation pay, butpayable only upon termination of employment." Nolde Bros., 430 U.S., at 248,97 S.Ct. at 1070.

We agreed that

30 "whatever the outcome, the resolution of that claim hinges on the interpretationultimately given the contract clause providing for severance pay. The disputetherefore, although arising after the expiration of the collective-bargainingcontract, clearly arises under that contract." Id., at 249, 97 S.Ct., at 1071(emphasis in original).

31 We acknowledged that "the arbitration duty is a creature of the collective-bargaining agreement" and that the matter of arbitrability must be determinedby reference to the agreement, rather than by compulsion of law. Id., at 250-251, 97 S.Ct., at 1071-1072. With this understanding, we held that theextensive obligation to arbitrate under the contract in question was notconsistent with an interpretation that would eliminate all duty to arbitrate as ofthe date of expiration. That argument, we noted,

32 "would preclude the entry of a post-contract arbitration order even when thedispute arose during the life of the contract but arbitration proceedings had notbegun before termination. The same would be true if arbitration processesbegan but were not completed, during the contract's term." Id., at 251, 97 S.Ct.,at 1072.

33 We found "strong reasons to conclude that the parties did not intend theirarbitration duties to terminate automatically with the contract," id., at 253, 97S.Ct., at 1073, and noted that "the parties' failure to exclude from arbitrabilitycontract disputes arising after termination . . . affords a basis for concluding thatthey intended to arbitrate all grievances arising out of the contractualrelationship," id., at 255, 97 S.Ct., at 1074. We found a presumption in favor ofpostexpiration arbitration of matters unless "negated expressly or by clearimplication," ibid., but that conclusion was limited by the vital qualification thatarbitration was of matters and disputes arising out of the relation governed bycontract.

34 * Litton argues that provisions contained in the Agreement rebut the NoldeBros. presumption that the duty to arbitrate disputes arising under an agreementoutlasts the date of expiration. The Agreement provides that its stipulations"shall be in effect for the time hereinafter specified," App. 22, in other words,until the date of expiration and no longer. The Agreement's no-strike clause,which Litton characterizes as a quid pro quo for arbitration, applies only"during the term of this [a]greement," id., at 34. Finally, the Agreementprovides for "interest arbitration" in case the parties are unable to conclude asuccessor agreement, id., at 53-55, proving that where the parties wished forarbitration other than to resolve disputes as to contract interpretation, they knew

B

how to draft such a clause. These arguments cannot prevail. The Agreement'sunlimited arbitration clause, by which the parties agreed to arbitrate all "[d]ifferences that may arise between the parties" regarding the Agreement,violations thereof, or "the construction to be placed on any clause or clauses ofthe Agreement," id., at 34, places it within the precise rationale of Nolde Bros.It follows that if a dispute arises under the contract here in question, it is subjectto arbitration even in the postcontract period.

35 With these matters resolved, we come to the crux of our inquiry. We agree withthe approach of the Board and those courts which have interpreted Nolde Bros.to apply only where a dispute has its real source in the contract. The object ofan arbitration clause is to implement a contract, not to transcend it. Nolde Bros.does not announce a rule that postexpiration grievances concerning terms andconditions of employment remain arbitrable. A rule of that sweep in fact wouldcontradict the rationale of Nolde Bros. The Nolde Bros. presumption is limitedto disputes arising under the contract. A postexpiration grievance can be said toarise under the contract only where it involves facts and occurrences that arosebefore expiration, where an action taken after expiration infringes a right thataccrued or vested under the agreement, or where, under normal principles ofcontract interpretation, the disputed contractual right survives expiration of theremainder of the agreement.

36 Any other reading of Nolde Bros. seems to assume that postexpiration termsand conditions of employment which coincide with the contractual terms can besaid to arise under an expired contract, merely because the contract would haveapplied to those matters had it not expired. But that interpretation fails torecognize that an expired contract has by its own terms released all its partiesfrom their respective contractual obligations, except obligations already fixedunder the contract but as yet unsatisfied. Although after expiration most termsand conditions of employment are not subject to unilateral change, in order toprotect the statutory right to bargain, those terms and conditions no longer haveforce by virtue of the contract. See Office and Professional Employees Ins.Trust Fund v. Laborers Funds Administrative Office of Northern California,Inc. 783 F.2d 919, 922 (CA9 1986) ("An expired [collective bargainingagreement] . . . is no longer a 'legally enforceable document.' " (citationomitted)); cf. Derrico v. Sheehan Emergency Hosp., 844 F.2d 22, 25-27 (CA21988) (Section 301 of the LMRA, 29 U.S.C. § 185, does not provide a federalcourt jurisdiction where a bargaining agreement has expired, although rightsand duties under the expired agreement "retain legal significance because theydefine the status quo" for purposes of the prohibition on unilateral changes).

37 The difference is as elemental as that between Nolde Bros. and Katz. UnderKatz, terms and conditions continue in effect by operation of the NLRA. Theyare no longer agreed-upon terms; they are terms imposed by law, at least so faras there is no unilateral right to change them. As the Union acknowledges, theobligation not to make unilateral changes is "rooted not in the contract but inpreservation of existing terms and conditions of employment and applies beforeany contract has been negotiated." Brief for Respondents 34, n. 21. Katzillustrates this point with utter clarity, for in Katz the employer was barred fromimposing unilateral changes even though the parties had yet to execute theirfirst collective-bargaining agreement.

38 Our decision in Laborers Health and Welfare Trust Fund v. AdvancedLightweight Concrete Co., Inc., 484 U.S. 539, 108 S.Ct. 830, 98 L.Ed.2d 936(1988), further demonstrates the distinction between contractual obligationsand postexpiration terms imposed by the NLRA. There, a bargaining agreementrequired employer contributions to a pension fund. We assumed that under Katzthe employer's failure to continue contributions after expiration of theagreement could constitute an unfair labor practice, and if so the Board couldenforce the obligation. We rejected, however, the contention that such a failureamounted to a violation of the ERISA obligation to make contributions "underthe terms of a collectively bargained agreement . . . in accordance with theterms and conditions of . . . such agreement." 29 U.S.C. § 1145. Anypostexpiration obligation to contribute was imposed by the NLRA, not by thebargaining agreement, and so the district court lacked jurisdiction under §502(g)(2) of ERISA, 29 U.S.C. § 1132(g)(2), to enforce the obligation.

39 As with the obligation to make pension contributions in Advanced LightweightConcrete Co., other contractual obligations will cease, in the ordinary course,upon termination of the bargaining agreement. Exceptions are determined bycontract interpretation. Rights which accrued or vested under the agreementwill, as a general rule, survive termination of the agreement. And of course, if acollective-bargaining agreement provides in explicit terms that certain benefitscontinue after the agreement's expiration, disputes as to such continuingbenefits may be found to arise under the agreement, and so become subject tothe contract's arbitration provisions. See United Steelworkers of America v.Fort Pitt Steel Casting, Division of Conval-Penn, Inc., 598 F.2d 1273 (CA31979) (agreement provided for continuing medical benefits in the event ofpostexpiration labor dispute).

40 Finally, as we found in Nolde Bros., structural provisions relating to remediesand dispute resolution—for example, an arbitration provision—may in somecases survive in order to enforce duties arising under the contract. Nolde Bros.'

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statement to that effect under § 301 of the LMRA is similar to the rule ofcontract interpretation which might apply to arbitration provisions of othercommercial contracts.3 We presume as a matter of contract interpretation thatthe parties did not intend a pivotal dispute resolution provision to terminate forall purposes upon the expiration of the agreement.

41 The Union, and Justice STEVENS' dissent, argue that we err in reaching themerits of the issue whether the post-termination grievances arise under theexpired agreement because, it is said, that is an issue of contract interpretationto be submitted to an arbitrator in the first instance. Whether or not a companyis bound to arbitrate, as well as what issues it must arbitrate, is a matter to bedetermined by the court, and a party cannot be forced to "arbitrate thearbitrability issue." AT & T Technologies, Inc. v. Communication Workers ofAmerica, 475 U.S. 643, 651, 106 S.Ct. 1415, 1419-20, 89 L.Ed.2d 648. Weacknowledge that where an effective bargaining agreement exists between theparties, and the agreement contains a broad arbitration clause, "there is apresumption of arbitrability in the sense that '[a]n order to arbitrate theparticular grievance should not be denied unless it may be said with positiveassurance that the arbitration clause is not susceptible of an interpretation thatcovers the asserted dispute.' " Id., at 650, 106 S.Ct., at 1419 (quotingSteelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 564, 582-583, 80S.Ct. 1343, 1352-1353, 4 L.Ed.2d 1403 (1960)). But we refuse to apply thatpresumption wholesale in the context of an expired bargaining agreement, forto do so would make limitless the contractual obligation to arbitrate. Although "[d]oubts should be resolved in favor of coverage," AT & T Technologies, supra,475 U.S., at 650, 106 S.Ct., at 1419, we must determine whether the partiesagreed to arbitrate this dispute, and we cannot avoid that duty because itrequires us to interpret a provision of a bargaining agreement.

42 We apply these principles to the layoff grievances in the present case. Thelayoffs took place almost one year after the Agreement had expired. It followsthat the grievances are arbitrable only if they involve rights which accrued orvested under the Agreement, or rights which carried over after expiration of theAgreement, not as legally imposed terms and conditions of employment but ascontinuing obligations under the contract.

43 The contractual right at issue, that "in case of layoffs, lengths of continuousservice will be the determining factor if other things such as aptitude and abilityare equal," App. 30, involves a residual element of seniority. Seniorityprovisions, the Union argues, "create a form of earned advantage, accumulated

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over time, that can be understood as a special form of deferred compensationfor time already worked." Brief for Respondents 23-25, n. 14. Leaving asidethe question whether a provision requiring all layoffs to proceed in inverseorder of seniority would support an analogy to the severance pay at issue inNolde Bros., which was viewed as a form of deferred compensation, the layoffprovision here cannot be so construed, and cannot be said to create a right thatvested or accrued during the term of the Agreement, or a contractual obligationthat carries over after expiration.

44 The order of layoffs under the Agreement was to be determined primarily withreference to "other factors such as aptitude and ability." Only where all suchfactors were equal was the employer required to look to seniority. Here, anyarbitration proceeding would of necessity focus upon whether aptitude andability—and any unenumerated "other factors"—were equal long after theAgreement had expired, as of the date of the decision to lay employees off andin light of Litton's decision to close down its cold-type printing operation.

45 The important point is that factors such as aptitude and ability do not remainconstant, but change over time. They cannot be said to vest or accrue or beunderstood as a form of deferred compensation. Specific aptitudes and abilitiescan either improve or atrophy. And the importance of any particular skill in thisequation varies with the requirements of the employer's business at any giventime. Aptitude and ability cannot be measured on some universal scale, but onlyby matching an employee to the requirements of an employer's business at thattime. We cannot infer an intent on the part of the contracting parties to freezeany particular order of layoff or vest any contractual right as of the Agreement'sexpiration.4

46 For the reasons stated, we reverse the judgment of the Court of Appeals to theextent that the Court of Appeals refused to enforce the Board's order in itsentirety and remanded the cause for further proceedings.

47 It is so ordered.

48 Justice MARSHALL, with whom Justice BLACKMUN and Justice SCALIAjoin, dissenting.

49 Although I agree with Justice STEVENS' dissent, post, I write separately toemphasize the majority's mischaracterization of our decision in Nolde Bros.,

Inc. v. Bakery Workers, 430 U.S. 243, 97 S.Ct. 1067, 51 L.Ed.2d 300 (1977).Nolde states a broad, rebuttable presumption of arbitrability which applies to allpost-termination disputes arising under the expired agreement; it leaves themerits of the underlying dispute to be determined by the arbitrator. Today themajority turns Nolde on its head, announcing a rule that requires courts to reachthe merits of the underlying posttermination dispute in order to determinewhether it should be submitted to arbitration. This result is not only unfaithfulto precedent but also it is inconsistent with sound labor-law policy.

50 * The dispute in Nolde concerned whether employees terminated after theexpiration of a collective-bargaining agreement were entitled to severance payunder a severance-pay clause of the expired agreement. See id., at 248-249, 97S.Ct., at 1070-1071. The Court stated that the severance-pay dispute "hinge[d]on the interpretation [of] the contract clause providing for severance pay" butthat "the merits of the underlying claim" were not implicated "in determiningthe arbitrability of the dispute." Id., at 249, 97 S.Ct., at 1071. To determinewhether the dispute was arbitrable, the Court looked solely to the expiredagreement's arbitration clause. It found the severance-pay dispute arbitrablebecause "[t]he parties agreed to resolve all disputes by resort to the mandatorygrievance-arbitration machinery" and "nothing in the arbitration clause . . .expressly exclude[d] from its operation a dispute which arises under thecontract, but which is based on events that occur after its termination." Id., at252-253, 97 S.Ct., at 1072-1073.1 Thus, under Nolde, the key questions fordetermining arbitrability are whether (1) the dispute is "based on . . . differingperceptions of a provision of the expired collective-bargaining agreement" orotherwise "arises under that contract," id., at 249, 97 S.Ct., at 1071 (emphasisomitted), and, if so, (2) whether the "presumptions favoring" arbitrability havebeen "negated expressly or by clear implication," id., at 255, 97 S.Ct., at 1074.

51 The majority grossly distorts Nolde's test for arbitrability by transforming thefirst requirement that posttermination disputes "arise under" the expiredcontract. The Nolde Court defined "arises under" by reference to the allegationsin the grievance. In other words, a dispute "arises under" the agreement where"the resolution of [the Union's] claim hinges on the interpretation ultimatelygiven the contract." Id., at 249, 97 S.Ct., at 1071.

52 By contrast, the majority today holds that a postexpiration grievance can besaid to "arise under" the agreement only where the court satisfies itself (1) thatthe challenged action "infringes a right that accrued or vested under theagreement," or (2) that "under normal principles of contract interpretation, thedisputed contractual right survives expiration of the remainder of theagreement." Ante, at 206. Because they involve inquiry into the substantive

effect of the terms of the agreement, these determinations require passing uponthe merits of the underlying dispute. Yet the Nolde Court expressly stated that"in determining the arbitrability of the dispute, the merits of the underlyingclaim . . . are not before us." 430 U.S., at 249, 97 S.Ct. at 1071.

53 Since the proper question under Nolde is whether the dispute in this case"arises under" the agreement in the sense that it is "based on . . . differingperceptions of a provision in the expired collective bargaining agreement,"ibid., I have no difficulty concluding that this test is met here. The Union'sgrievance "claim[ed] a violation of the Agreement," ante, at 194, by petitioner'slayoffs. And, as even the majority concedes, "[t]he Agreement's unlimitedarbitration clause" encompasses any dispute that "arises under the contract herein question." Ante, at 205. Thus, the dispute is arbitrable because the"presumptions favoring" arbitrability have not been "negated expressly or byclear implication." 430 U.S., at 255, 97 S.Ct., at 1074.

54 In fashioning its more rigorous standard for arbitrability, the majorityerroneously suggests that if Nolde rendered arbitrable all postexpirationdisputes about an expired agreement's substantive provisions, it would have theeffect of extending the life of the entire contract beyond the date of expiration.See ante, at 206. The defect in this view is that it equates asking an arbitrator todetermine whether a particular contractual provision creates rights that surviveexpiration with a decision that the provision does create such postexpirationrights. The majority evidently fears that arbitrators cannot be trusted to decidethe issue correctly. Yet arbitrators typically have more expertise than courts inconstruing collective-bargaining agreements, and our arbitration jurisprudencemakes clear that courts must rely on arbitral judgments where the parties haveagreed to do so. Thus in Nolde, we carefully avoided expressing any view as towhether the substantive provisions of the expired agreement had anyposttermination effect precisely because the parties had expressed theirpreference for an arbitral, rather than a judicial interpretation. See Nolde, supra,at 249, 253, 97 S.Ct., at 1070-71, 1073.

55 Consequently, the issue here, as it was in Nolde, is not whether a substantiveprovision of the expired collective-bargaining agreement (in this case theprovision covering layoffs) remains enforceable but whether the expiredagreement reflects the parties' intent to arbitrate the Union's contention that thisprovision remains enforceable. The majority itself acknowledges a general ruleof contract construction by which arbitration or other dispute resolutionprovisions may survive the termination of a contract. Ante, at 208, and n. 3.That is all Nolde stands for.2

II

56 In addition to being without legal foundation, the majority's displacement ofNolde's simple, interpretive presumption with a case-by-case test is unsoundfrom a policy standpoint. Ironically, whereas parties that have agreed to a broadarbitration clause have expressed a preference for "a prompt and inexpensiveresolution of their disputes by an expert tribunal," Nolde, supra, at 254, 97S.Ct., at 1073, the majority invites protracted litigation about what rights may"accrue" or "vest" under the contract—litigation aimed solely at determiningwhether the dispute will be resolved by arbitration. More fundamentally,because the arbitrator is better equipped than are judges to make the oftendifficult determination of the post-termination effect of an expired contract'ssubstantive provisions, the majority's assignment of this task to courts increasesthe likelihood of error. See id., at 253, 97 S.Ct., at 1073 (" 'The ablest judgecannot be expected to bring the same experience and competence to bear uponthe determination of a grievance, because he cannot be similarly informed,' "quoting Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582, 80 S.Ct.1347, 1353, 4 L.Ed.2d 1409 (1960)).

57 The majority's resolution of the merits of the contract dispute here reinforcesmy conviction that arbitrators should be the preferred resolvers of suchquestions. The Union based its grievance on the following provision of thecontract: "[I]n case of layoffs, lengths of continuous service will be thedetermining factor if other things such as aptitude and ability are equal." App.30. The Union's contention that postexpiration layoffs violated this provisionrests on the assertion that this contractual provision created rights that survivetermination of the contract. The majority rejects this assertion on the groundthat "factors such as aptitude and ability do not remain constant, but changeover time" and thus "cannot be said to vest or accrue." Ante, at 210. Thisconclusion strikes me as utterly implausible.

58 As the majority appears to concede, ante, at 209-210, and as the Board hasheld, an unconditional seniority provision can confer a seniority right that is"capable of accruing or vesting to some degree during the life of the contract."United Chrome Products, Inc., 288 N.L.R.B. 1176, 1177 (1988). Obviously, anemployee's relative seniority, much like his relative "aptitude and ability," will"change over time." That is, a given member of a bargaining unit who is, forexample, 12th in seniority when his collective-bargaining agreement expiresmay be 5th in seniority at a particular time thereafter, depending upon thenumber of more senior employees who have departed from the workforce. Oran employee could lose his seniority altogether where specified conditions forsuch loss have been met. See, e.g., n. 3, infra. The fact that, despite the

volatility in individual rank, the seniority guarantee might nevertheless vestunder the contract means that what vests is not the employee's seniority rank orhis right to job security but rather the right to have the standard of seniorityapplied to layoffs.

59 In my view, a provision granting only "qualified" seniority may vest in thesame way. (Here, the provision guaranteeing seniority is "qualified" by therequirement that the employee claiming seniority possess "aptitude and ability"that is equal to that of less senior employees who seek to avoid being laid off.)As with an employee's seniority rank, a given worker's "aptitude and ability"relative to other employees may change over time, yet the right to have layoffsmade according to the standard of qualified seniority could vest under thecontract. Under this view, a laid off employee would have the opportunity toprove to the arbitrator that he should not have been laid off under the terms ofthe contract because other factors such as aptitude and ability were equal at thetime he was laid off.

60 Indeed, I think this is the more plausible reading of the parties' intent in thiscase, particularly given related contract provisions involving loss of seniority.As the Board has previously held, a contract's

61 "failure to specify expiration as one of the ways in which seniority rights couldbe lost indicates that the parties intended that seniority rights remainenforceable after contract termination. Therefore, the grievance over [theemployer's] refusal to recall employees by plantwide seniority . . . involves aright worked for and accumulated during the term of the contract and intendedby the parties to survive contract expiration." Uppco, Inc., 288 N.L.R.B. 937,940 (1988).

62 In the present case, the expired agreement enumerates six specific ways anemployee could lose seniority, and these do not include termination of theagreement. See App. 31.3 Thus, the qualified seniority at issue in this casewould seem as likely to accrue as did the unconditional seniority in Uppco.

63 In any event, the conclusion that the contracting parties in this case did notintend qualified seniority rights to vest is sufficiently implausible as to raiseserious questions about the majority's assignment of the task of deciding thisinterpretive issue to itself. Had the majority left this issue to the arbitrator todecide, as Nolde requires, the arbitrator would have had the benefit of anevidentiary hearing on the contractual question and the opportunity to explorepetitioner's actual postexpiration seniority practices. The contractual text, alone,

may not be the only relevant information in determining the parties' intent.Because arbitrators are better equipped to decide such issues and are morefamiliar with the " 'common law of the shop,' " Nolde, supra, 430 U.S., at 253,97 S.Ct., at 1073, quoting Warrior & Gulf Nav. Co., supra, 363 U.S., at 582, 80S.Ct., at 1352, I would have much more confidence in the majority'sconstruction of the contract were that result reached by an arbitrator. In sum,the majority's problematic reasoning regarding the substance of the layoffgrievance only underscores the soundness of the Nolde presumption ofarbitrability which the majority today displaces. Accordingly, I dissent.4

64 Justice STEVENS, with whom Justice BLACKMUN and Justice SCALIA join,dissenting.

65 As the Court today recognizes, an employer's obligation to arbitratepostcontract termination grievances may arise by operation of labor law or byoperation of the expired collective-bargaining agreement. I think the Court iscorrect in deferring to the National Labor Relations Board's line of cases andholding that a statutory duty to arbitrate grievances does not automaticallycontinue after contract termination by operation of labor law, see ante, at 198-203. I also agree with the Court's recognition that notwithstanding the absenceof an employer's statutory duty to arbitrate posttermination grievances, acontractual duty to arbitrate such grievances may nevertheless exist, see ante,at 203-208. I part company with the Court, however, at Part IV-C of itsopinion, where it applies its analysis to the case at hand. Because I ampersuaded that the issue whether the posttermination grievances in this case"arise under" the expired agreement is ultimately an issue of contractinterpretation, I think that the Court errs in reaching the merits of this issuerather than submitting it to an arbitrator in the first instance, pursuant to thebroad agreement of the parties to submit for arbitration any dispute regardingcontract construction.

66 In Nolde Bros., Inc. v. Bakery Workers, 430 U.S. 243, 97 S.Ct. 1067, 51L.Ed.2d 300 (1977), a union brought suit against an employer to compelarbitration of the employer's refusal to give severance pay under an expiredcollective-bargaining agreement to employees displaced by a plant closing. Theexpired agreement provided that employees who had worked for the employerfor at least three years were entitled to severance pay if permanently displacedfrom their jobs. The union claimed that the right to such severance pay had"accrued" or "vested" during the life of the contract. The employer disavowedany obligation to arbitrate, arguing that the contract containing its commitmenthad terminated and the event giving rise to the dispute—the displacement ofemployees during the plant closing—occurred after the contract had expired.

The conflict between the Ninth Circuit's reasoning in Local Joint Executive Bd.of Las Vegas Culinary Workers Union, Local 226 v. Royal Center, Inc., 796

67 We ruled in favor of the union in Nolde Bros. Integral to our decision was theconclusion that whether or not the right to severance pay had accrued duringthe contract, and thus whether or not the employer's refusal to offer severancepay was an arbitrable grievance after the contract had expired, was itself aquestion of contract interpretation. "There can be no doubt that a dispute overthe meaning of the severance-pay clause during the life of the agreement wouldhave been subject to the mandatory grievance-arbitration procedures of thecontract. Indeed, since the parties contracted to submit 'all grievances' toarbitration, our determination that the Union was 'making a claim which on itsface is governed by the contract' would end the matter had the contract not beenterminated prior to the closing of the plant." Id., at 249-250, 97 S.Ct., at 1071(citation omitted).

68 Like the expired agreement between the Union and Nolde Bros. to arbitrate "allgrievances," the terminated agreement between Litton and the Union in thiscase broadly mandates arbitration of " '[d]ifferences that may arise between theparties hereto regarding this Agreement and any alleged violations of theAgreement, [and] the construction to be placed on any clause or clauses of theAgreement.' " Ante, at 194. Because the Union here alleged that the seniorityclause of the expired agreement was on its face violated by the postterminationlayoffs, determining whether the union's grievances arise under the contractrequires construction of the seniority provision of the contract anddetermination of whether this provision applies to posttermination events. Asthe Court itself notes: "[T]he Board's decision not to order arbitration of thelayoff grievances rests upon its interpretation of the Agreement." Ante, at 202(emphasis added).

69 In my opinion, the question whether the seniority clause in fact continues toprovide employees with any rights after the contract's expiration date is aseparate issue concerning the merits of the dispute, not its arbitrability.Whatever the merits of the Union's contention that the seniority-rightsprovision survives the contract's termination date, I think that the merits shouldbe resolved by the arbitrator, pursuant to the parties' broad contractualcommitment to arbitrate all disputes concerning construction of the agreement,rather than by this Court.

70 I respectfully dissent.

1

F.2d 1159 (1986), and the Board's approach in Indiana & Michigan ElectricCo., 284 N.L.R.B. 53 (1987), reflects a wider split of authority. The Third andFifth Circuits follow an approach similar to that of the Ninth Circuit. SeeFederated Metals Corp. v. United Steelworkers of America, 648 F.2d 856, 861(CA3), cert. denied, 454 U.S. 1031, 102 S.Ct. 567, 70 L.Ed.2d 474 (1981);Seafarers Int'l Union of North America v. National Marine Servs., Inc., 820F.2d 148, 152-154 (CA5), cert. denied, 484 U.S. 953, 108 S.Ct. 346, 98L.Ed.2d 372 (1987). The Eighth Circuit, Tenth Circuit, and the MichiganSupreme Court follow the Board's approach and limit the presumption of post-expiration arbitrability to rights that accrued or vested under the agreement, orevents that took place prior to expiration of the agreement. See Chauffeurs,Teamsters and Helpers, Local Union 238 v. C.R.S.T. Inc., 795 F.2d 1400, 1404(CA8 1986) (en banc); United Food & Commercial Workers Int'l Union, AFL-CIO, Local 7 v. Gold Star Sausage Co., 897 F.2d 1022, 1025-1026 (CA101990); County of Ottawa v. Jaklinski, 423 Mich. 1, 377 N.W.2d 668 (1985)(discussing Nolde in context of Michigan law applicable to public employers).The Seventh Circuit, finally, restricts application of Nolde Bros. to a limitedperiod following expiration of a bargaining agreement. See Local 703, Int'lBrotherhood of Teamsters v. Kennicott Bros. Co., 771 F.2d 300 (1985).

See, e.g., NLRB v. New England Newspapers, Inc., 856 F.2d 409, 410 (CA11988) (agreement would continue in effect until a new agreement was reached);Montgomery Mailers' Union No. 127 v. The Advertiser Co., 827 F.2d 709, 712,n. 5 (CA11 1987) (agreement to continue in effect "for a reasonable time fornegotiation of a new agreement"); Teamsters Local Union 688 v. John J. MeierCo., 718 F.2d 286, 287 (CA8 1983) ("all terms and provisions of the expiredagreement shall continue in effect until a new agreement is adopted ornegotiations are terminated").

See, e.g., West Virginia ex rel. Ranger Fuel Corp. v. Lilly, 165 W.Va. 98, 100-101, 267 S.E.2d 435, 437-438 (1980) (duty to arbitrate survives termination oflease); Warren Brothers Co. v. Cardi Corp., 471 F.2d 1304 (CA1 1973)(arbitration clause survives completion of work under construction contract);Mendez v. Trustees of Boston University, 362 Mass. 353, 356, 285 N.E.2d 446,448 (1972) (termination of employment contract "does not necessarilyterminate a provision for arbitration or other agreed procedure for theresolution of disputes"); The Batter Building Materials Co. v. Kirschner, 142Conn. 1, 10-11, 110 A.2d 464, 469-470 (1954) (arbitration clause in buildingcontract not affected by a party's repudiation or total breach of contract).

Although our decision that the dispute does not arise under the Agreement does,of necessity, determine that as of August 1980 the employees lacked any vestedcontractual right to a particular order of layoff, the Union would remain able to

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argue that the failure to lay off in inverse order of seniority if "other things suchas aptitude and ability" were equal amounted to an unfair labor practice, as aunilateral change of a term or condition of employment. We do not decidewhether, in fact, the layoffs were out of order.

I agree with the majority that the National Labor Relations Board's (Board)determination as to arbitrability under the contract is not entitled to deference.See ante, at 202-203.

The majority "presume[s] as a matter of contract interpretation that the partiesdid not intend a pivotal dispute resolution provision to terminate for allpurposes upon the expiration of the agreement." Ante, at 208. But thearbitration clause of the expired collective-bargaining agreement does notdistinguish among types of disputes that the parties would and would notsubmit to arbitration. As in Nolde, the parties agreed to submit all disputesarising under the agreement to arbitration. By looking to the terms of theagreement's layoff provision to draw a conclusion about whether the partiesintended rights under that provision to survive termination, the majority isdeciding the merits of the dispute rather than the issue of its arbitrability.Notably, the layoff provisions do not contain any language suggesting an intentto preclude posttermination grievances over layoffs from arbitration. See App.30-31.

Section 12 of the expired agreement, entitled "Notice of Layoutt" [sic ],contains six subsections addressing, inter alia, issues of seniority, layoffs, andrecalls. Subsection F, which addresses the recalling of laid off workers,enumerates the six ways in which "[a]n employee shall lose his seniority." App.31. The "seniority" referred to in subsection F reasonably could be construed asthe same seniority that is implied in subsection A, concerning layoffs, and thatis expressly identified in subsection E, which requires the employer to "supplythe Union with an updated seniority list semi-annually," id. See id., at 30-31.

Although I believe the parties have a contractual duty to arbitrate in this case, Iagree with the majority's conclusion that the Board articulated rational groundsfor not imposing a statutory duty under the National Labor Relations Act, 29U.S.C. § 151 et seq., to arbitrate grievances arising after the termination of acollective-bargaining agreement. See Ante, at 200-201. In Indiana andMichigan Electric Co., 284 N.L.R.B. 53 (1987), the Board noted that "anagreement to arbitrate is a product of the parties' mutual consent to relinquisheconomic weapons, such as strikes or lockouts" and therefore the contractualobligation to arbitrate could be distinguished from other "terms and conditionsof employment routinely perpetuated [after termination of a collective-bargaining agreement] by the [statutory] constraints of [the unilateral change

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doctrine]." Id., at 58. Under § 13 of the Act, 29 U.S.C. § 163, the Act may notbe construed to interfere with a union's right to strike. Therefore, the Boardrationally concluded that employers should not, as a matter of statutory policy,be compelled to arbitrate and thus forbear from using their economic weapons,when no concomitant statutory obligation can be imposed on a union.